This is an action upon an administrator’s bond. The complaint was in one paragraph, but alleged five different breachеs of the bond.
Answers were filed, and to the second paragraph of the
Afterwards the court mаde a special finding, and, upon the facts found, stated, as conclusions of law, that the appellant was entitled to recover on the third alleged breach of the bond, and on the others that the appellees were entitled to a judgment.
Thereupon the appellees paid into court the amount found in appellant’s favor upon the sаid third assigned breach, and moved the court to. tax certain items of cost against the appellant; which motion the court sustained, and rendered judgment against the relator for the amount. Afterwards the appellant moved for a new trial of the issues joined on the first alleged breach of the bond, and also moved for an order upon the clerk to pay tо the relator the said sum of money paid into court by the appellees.
The court made the desired order with refеrence to the said money, and also sustained the motion for a new trial, and, by the language of the order made, limited.the new trial to the issues joined upon the first alleged breach of the bond, and then continued the cause.
At the next following term of said court the appellees moved the court to strike the ease from the docket, which motion was sustainеd, and the appellant reserved the proper exception.
From the judgment of the court striking the case from thе docket this appeal is taken, and the only question presented for our consideration is the propriety of the court’s ruling in sustaining said motion and rendering said judgment.
In our opinion the action of the court in this particular was erroneous.
As the appellant, by his motion, only demanded a new trial as to a part of the issues, and not as to the whole case, it mаy have been error for the court to entertain the motion,
Jurisdiction over the subject-matter and of the person , was complete, hence none of its proсeedings could be treated as having no binding force or effect.
All of its proceedings were binding upon the parties until set aside upon proper steps being taken, by its own action, or upon appeal to this court.
If the appellees had moved in the court below for a vacation of the order granting a new trial, and their motion had been sustainеd, they would have been relieved from the operation of the said order at least until set aside in the same manner or appealed from after final judgment. But the appellees did not see proper to pursue either the cоurse indicated or take an appeal, but elected to treat the order as a nullity, and attempted to get rid of it by an attack in its nature collateral. This they could not successfully do.
Suppose the court had overruled their motion to strike the case from the docket, and gone on and tried the issues over again as to the first alleged breach оf the bond, and rendered judgment for the appellant, could it be claimed that that judgment would have been of no binding forcе until set aside by some direct attack ?
We apprehend that so long as it stood unreversed it would have had the same vitаlity and life that any valid judgment would have.
But what was the legal effect of the order of the court granting a new trial ?
Notwithstanding the lаnguage used in the order granting the new trial, whereby the court attempted to limit the new trial to the issues joined on the first allegеd breach of the bond, in our opinion the legal effect of the order of the court was to open up the wholе case. The action rested, as a whole, upon one instrument, or obligation; the special finding was an entirety, and аll rights of action in existence when the suit was brought, even as to such as were not in-
In 3 Graham & Waterman New Trials, p. 1339, it is said: “ If there be two distinct issues, or issues on two counts, and the verdict be not contrary to evidence as to one of them, the court will not grant a new trial, though it be contrary tо evidence as to the other; for since the verdict is right in part, the court will not set it aside.” See Lonsdale v. Brown,
The granting of a new trial has the effect to set aside the finding of the court, or verdict of the jury.
A portion of a special finding can not be set aside without wiping out the whole of it.
The order in question had the effect to set aside all of that part of the finding of the court relating to the issues joined on the first alleged breach of the bond, and necessarily, therefore, wiped it out as a whоle. Bisel v. Tucker,
22 Am. Law Review, 419: “ The actual granting of а new trial supersedes the effect of the former trial; or wipes out the verdict; no judgment can be rendered upon it, nor is it a bar to any proceeding. The case goes back upon all the issues of fact.” Hilliard New Trials, 74. See Edwards v. Edwards,
But if our cоnclusions were wrong upon the propositions considered above, there is still another reason why the ruling of the cоurt was erroneous.. The case had not been finally disposed of, and was properly on the docket, and should havе remained thereon until final judgment.
Judgment reversed, with costs, with directions to the court below to redocket the action and proceed in accordance with this opinion.